Analysis: Observers warn that NEC is in danger of losing legitimacy

With the government poised to divvy up the opposition CNRP’s parliamentary seats following its dissolution last week – a move almost universally condemned by the international community – a ruling on the permissibility of Cambodia’s largest redistribution of power in recent memory appears to have landed in the laps of just two people.

Thanks to a quirk of the Kingdom’s election laws – and the resignation on Monday of three opposition-nominated elections officials – National Election Committee (NEC) members Hing Thirith, also a CNRP nominee, and Hang Puthea, chosen as the body’s neutral “consensus” member, will likely cast the votes that either uphold or block a move that will disenfranchise nearly 3 million voters.

As government pressure on the Cambodia National Rescue Party mounted earlier this year, the Kingdom’s election laws were hastily, and controversially, amended by the ruling Cambodian People’s Party to allow for the redistribution of the opposition’s seats in the event of its dissolution.

Now, those same laws stipulate that the NEC, Cambodia’s ostensibly independent electoral arbiter, must approve the candidate lists of parties receiving redistributed seats.

However, following the resignation of the three CNRP nominees from the NEC on Monday, only Thirith, Puthea and four CPP nominees remain, with five votes needed to finalise the redistribution of Assembly seats.

Failure to reach a majority, meanwhile, would appear to trigger a feedback loop of difficulty, as the NEC’s own bylaws – amended as part of a “reform” deal following the disputed 2013 elections – require that the parties within the National Assembly select and approve nominees to fill vacancies at the NEC.

If the NEC doesn’t approve the new parties, the laws suggest, the parties can’t repopulate the NEC.

However, with neither Puthea nor Thirith saying yesterday that they would oppose the measure, observers wondered aloud whether either would fulfil what they characterised as the obligations of their office, and whether a 2014 deal to “reform” the long-criticised NEC had finally proven to be for naught.

Puthea, the former head of an election monitoring NGO who was selected to provide a neutral voice on the NEC, yesterday would not comment on which direction he was inclined towards, saying he would need to see the list of Assembly candidates before deciding whether or not to approve them.

“I don’t know, because all the political parties have not answered yet,” he said. “I could not make a decision before the process has started.”

Thirith, meanwhile, confirmed he would not be stepping down like his three co-nominees who, in announcing their resignation, called the redistribution “a violation of the will of the people”.

The CNRP won 44 percent of the popular vote in 2013, taking 55 seats in the 123-seat Assembly. The parties now eligible to divvy up its seats, meanwhile, won just over 6 percent of the vote between them. Observers have called the redistribution a political fig leaf to obscure effective one-party rule by the CPP.

Still, Thirith maintained the NEC had “no right to reject” the reallocation, appearing to suggest he would go along with the changes. “The NEC is just an institution to implement the law. If the law says one party has to be dissolved and [the NEC] needs to re-elect the new lawmakers, the NEC will reorganise it.”

Former CNRP Deputy President Mu Sochua, who fled the country to avoid arrest, would not say yesterday whether she thought Thirith should resign, though she did characterise his recently departed co-nominees as “true models for others to defend democratic principles”.

She also reminded Thirith he had “to answer to 3 million [CNRP] voters”.

Yoeurng Sotheara, legal officer at the elections watchdog Comfrel, also said that if Thirith did not oppose the redistribution, “some could say that … he breached the trust of the voters”. As for Puthea, Sotheara said that if he “still keeps quiet” about the current political climate, he could let down the civil society organisations that supported his appointment, but stopped short of calling for his resignation.

Puthea, however, said that observers were not aware of the internal process at the NEC. “They just stand outside of the meeting … By law I have the right to make a decision by my own thinking,” he said.

Meanwhile, Cambodian People’s Party spokesman Sok Eysan said yesterday the remaining members were enough to validate candidate lists. This means they can “operate smoothly, without obstacles”, he said.

Other observers, however, yesterday questioned how the NEC could preserve its ostensible independence if it approved the reallocation. Human rights expert Billy Chia-Lung Tai said the NEC will have lost all legitimacy if it allows for the seats to be redistributed.

“NEC cannot be neutral anymore if they are condoning this and going along with it. The only independent option for the NEC is to stay out of it,” he said.

“Imagine if [German Chancellor Angela] Merkel just ‘dissolved’ the whole party that’s just pulled out of a coalition today and ‘redistributed’ their seat to those who would be willing to enter into a coalition? That would be absurd!” Tai added.

The CNRP’s Sochua also said the body’s legitimacy would be shot if it were elected by “an illegitimate parliament”.

Political analyst Ou Virak, meanwhile, said that while the body now was clearly not neutral, the 2014 deal struck to get opposition representatives on the committee never actually ensured the body’s neutrality in the first place.

“The deal back then? That’s more form than substance. That was about sharing candies [between the two parties], as expected,” he said. “The balance has always been tilted toward the CPP side.”

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